Tuesday, January 7, 2014

More Than Smoke and Mirrors: How DC Protects Tobacco Users From Employment Discrimination

On frigid days like today, it is easier than usual to spot smokers. While everyone else is running for the nearest door, these brave souls scoff at Jack Frost and puff away.

That bravery comes with a cost to employers. According to a study published in Tobacco Control this past summer, a company pays on average about $6,000 more per year to employ a smoker. So it should be no surprise that more and more businesses are refusing to employ tobacco users.

However, tobacconists in the nation’s capital should have no fear. The District of Columbia prohibits employment discrimination based on a worker’s tobacco use. See DC ST § 7-1703.03.

Specifically, employers in the District cannot fire, refuse to hire, or otherwise discriminate against any employee based on that person’s use of tobacco products. Victims of discrimination can go directly to court to recover money damages, including back pay. The statute also provides for discretionary attorneys’ fees.

The District has a rich history of providing broad anti- discrimination laws. Indeed, the District goes farther than the federal government and many states, protecting such things as sexual orientation, gender identity, college affiliation, physical appearance, and age for people between 18 and 40.

Still, it seems to be an odd policy choice to protect tobacco use. And yet the District of Columbia is not alone: dozens of states have laws that protect smokers’ rights in the workplace. Seventeen of those states – like the District – specifically protect tobacco use while excluding other lawful activities.

But the reason that tobacco use is protected is largely historical. In the early 80s, smoking was much more prevalent and socially acceptable than it is today. Around that time, Alaska Airlines and a few other large corporations implemented the first policies openly discriminating against tobacco use. These companies decided to not employ smokers, regardless of whether they used tobacco at home or at work.

In response, Big Tobacco and the ACLU urged legislatures to protect employees’ right to smoke. That effort led Colorado to pass the “Lawful Activities Statute,” which has recently brought employment law to the center of the legal marijuana debate. It also led to the 1993 passage of the District’s law.

To date, no District of Columbia court cases cite the statute. Though this could be for various reasons, it is safe to assume that tobacco discrimination suits are not particularly prevalent.

But that does not mean the statute is inconsequential. Most likely, the law’s primary impact has been to eliminate policies against hiring smokers that companies would otherwise consider. Indeed, where tobacco use is not protected, many employers are choosing to not employ smokers. This trend causes concern for some who fear that these same economic and welfare considerations could cause employers to single out workers on other characteristics, such as weight.

However, though employers cannot take employment actions because a worker smokes in general, they can create workplace restrictions on tobacco use. Further, employers can even forbid tobacco use if it is a bona fide occupational qualification.

It can often be helpful for an employer to have a tobacco use policy, so that mutual expectations are clear. Further, many legitimate employer concerns can be addressed through carefully drafted workplace restrictions. However, companies should consult with an experienced employment attorney to ensure that such policies are lawful and do not give rise to unexpected liabilities.

This statute also provides a different, but no less practical, lesson for employees: There is a diverse patchwork of exceptions to the “at-will” doctrine. These exceptions may provide relief even when an adverse decision is not based on a clearly protected class, such as race. If a worker feels she has been treated unfairly, she should consult with an attorney to explore whether a remedy exists.